EX-10.28 4 rublsasg.txt ASSIGNMENT AND ASSUMPTION OF LEASE Brownsville, TX THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment") is made and entered into as of the 17th day of February, 2006, by and between MEYER-LAMPH DEVELOPMENT GROUP, LTD., a Texas limited partnership ("Assignor"), and AEI INCOME & GROWTH FUND 25 LLC, a Delaware limited liability company ("Assignee"). RECITALS: A. Assignor and Assignee are parties to that certain Commercial Purchase and Sale Contract dated November 4, 2005, (the "Agreement"), pursuant to which Assignee is acquiring from Assignor the real property, and improvements located on such property, more particularly described on EXHIBIT A attached hereto and incorporated herein by this reference (the "Premises"). B. Pursuant to the terms of the Agreement, Assignor desires to sell, assign, convey, transfer and set over to Assignee and Assignee desires to assume all of Assignor's interest in that certain Lease dated February 7, 2005 (the "Lease") by and between Assignor and Advance Stores Company, Incorporated (the "Tenant"), as evidenced by that certain Memorandum of Lease dated _____________, 2006, which was filed and recorded as of the date hereof as Volume _____, Page ________ in the Official Public Records of Cameron County, Texas, including all rents prepaid for any period subsequent to the date of this Assignment, subject to the terms and conditions set forth below. C. Assignor is the Landlord under the Lease with full right and title to assign the Lease, and the "Rent" (as defined below) to Assignee as provided herein. The Lease is in full force and effect and has not been modified or amended. So far as is known to Assignor, there is no default by Tenant under the Lease, and no Rent has been waived, anticipated, discounted, compromised or released. NOW, THEREFORE, in consideration of the Recitals, which are hereby made a part hereof, for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, Assignor and Assignee hereby agree as follows: 1. Assignor hereby irrevocably and unconditionally sells, assigns, conveys, transfers and sets over unto Assignee, its heirs, successors and assigns as of the date hereof (the "Effective Date"), all of Assignor's right, title and interest in, to and under: (i) the Lease, and (ii) any and all rents prepaid as of the Effective Date, held by Assignor in connection with the Lease (the "Rent"). 2. Except as otherwise set forth in Paragraph 4 hereof, Assignee hereby assumes and shall be liable for any and all liabilities, claims, obligations, losses and expenses, including reasonable attorneys' fees arising in connection with the Lease, which are actually incurred, and which arise by virtue of acts or omissions occurring thereunder on or after the Effective Date. Assignor shall indemnify and hold Assignee harmless from any and all liabilities, claims, obligations, losses and expenses, including reasonable attorneys' fees arising in connection with the Lease which are actually incurred, and which arise by virtue of acts or omissions occurring thereunder, prior to the Effective Date. Except as otherwise set forth in Paragraph 4 hereof, Assignee shall indemnify and hold Assignor harmless from any and all liabilities, claims, obligations, loss and expenses, including reasonable attorneys' fees, arising in connection with the Lease or as a result of Assignee's failure to fulfill the landlord's duties and obligations accruing under the Lease on or after the Effective Date. Assignee shall be entitled to receive all income arising from the Lease from and after said Effective Date. Assignor shall be entitled to receive all income accruing from the Lease prior to the Effective Date. In the event that Assignor is paid any rents after the Effective Date, Assignor agrees to pay such to Assignee as soon as reasonably practicable after the date of receipt by Assignor. 3. Assignor shall direct the Tenant and any successor tenant under the Lease to pay to Assignee the Rent and all other monetary obligations due or to become due under the Lease for the period beginning on the Effective Date. 4. Notwithstanding anything contained herein or implied hereby to the contrary, Assignor shall remain liable for the performance of the obligations of the "Landlord" under the Lease with respect to Landlord's obligations under Section 2 of the Lease. 5. This Assignment shall be governed by and construed in accordance with the laws of the state in which the Property is located. 6. All rights and obligations of Assignee and Assignor hereunder shall be binding upon and inure to the benefit of Assignor, Assignee and the heirs, successors and assigns of each such party. 7. This Assignment may be executed in any number of counterparts, each of which shall be effective only upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, for the same effect as if all parties hereto had signed the same signature page. Any signature page of this Assignment may be detached from any counterpart of this Assignment without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages. 8. Whenever the context so requires in this Assignment, all words used in the singular shall be construed to have been used in the plural (and vice versa), each gender shall be construed to include any other genders, and the word "person" shall be construed to include a natural person, a corporation, a firm, a partnership, a joint venture, a trust, an estate or any other entity. IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment effective as of the day and year first above written. ASSIGNOR:MEYER-LAMPH DEVELOPMENT GROUP, LTD., a Texas limited partnership By: DSL Management, L.L.C., a Texas limited liability company, its General Partner By: /s/ Dale Meyer Name: Dale Meyer Its: President STATE OF TEXAS ) ) ss. COUNTY OF HIDALGO ) This instrument was acknowledged before me on the 16th day of February 2006, by DALE MEYER, acting in his capacity as President of DSL Management, L.L.C., General Partner of Meyer- Lamph Development Group, Ltd., A Texas Limited Partnership, and on behalf of said Partnership. [Notarial Seal] /s/ Matthew L Jones Notary Public, State of Texas My Commission Expires: [SIGNATURES TO CONTINUE ON FOLLOWING PAGE] ASSIGNEE: AEI INCOME & GROWTH FUND 25 LLC, a Delaware limited liability company By: AEI Fund Management XXI, Inc., a Minnesota corporation, its Managing Member By: /s/ Robert P Johnson Robert P. Johnson, its President STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) The foregoing was acknowledged before me this ____ day of February, 2006, by Robert P. Johnson, in his capacity as the President of AEI Fund Management XXI, Inc., a Minnesota corporation, the Managing Member of AEI Income & Growth Fund 25 LLC, a Delaware limited liability company, who acknowledged the execution of the foregoing instrument to be the voluntary act and deed of said corporation by authority of its board of directors on behalf of the company. [Seal] /s/ Jennifer L Schriner Print Name: Jennifer L Schriner My Commission Expires: 01/31/2010 EXHIBIT A Legal Description LOT TWO (2), BLOCK (1), M-L 802 AND 48 SUBDIVISION, A SUBDIVISION IN THE CITY OF BROWNSVILLE, CAMERON COUNTY, TEXAS, ACCORDING TO THE MAP THEREOF RECORDED IN CABINET 1, SLOT 2501- B MAP RECORDS OF CAMERON COUNTY, TEXAS and also known as 5825 East Ruben Torres Boulevard LEASE AGREEMENT THIS LEASE AGREEMENT (this "Lease") is made as of February 7th, 2005 (the "Commencement Date"), between MEYER- LAMPH DEVELOPMENT GROUP, LTD., a Texas limited partnership ("Landlord"); and ADVANCE STORES COMPANY, INCORPORATED, a Virginia corporation ("Tenant"). In consideration of their mutual covenants and other valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree as follows: 1) LEASED PREMISES. Subject to and in accordance with the terms hereof, Landlord hereby leases to Tenant, and Tenant leases from Landlord, the premises situated at Highway 802, Cameron County, Brownsville, Texas consisting of approximately 0.815 acres which is outlined in red on a survey dated August 26, 2004, prepared by Ambiotec Group (the "Survey"), which Survey is attached hereto as Exhibit "A" and is incorporated herein by this reference (together with all appurtenances, rights, interest, easements and privileges in any way pertaining thereto, the "Land"), together with the improvements to be constructed on the Land by Landlord pursuant to this Lease, such improvements to consist of a building space of approximately 7,000 square feet of gross leasable floor area (the "Building") and the surrounding parking, landscape and sidewalk areas (including any and all striping of such parking areas) (collectively, the "Other Improvements"), all as identified on the site plan attached hereto as Exhibit "B," Attachment 1 and incorporated herein by this reference (the "Site Plan"). The Land, the Building and the Other Improvements, together with the "Tenant's Improvements" (as hereinafter defined), if any, shall hereinafter be collectively referred to as the "Leased Premises." 2) CONSTRUCTION OF LEASED PREMISES. Landlord shall, at its sole cost and expense, perform the "Work" (as defined in the Construction Provisions) in accordance with the construction provisions attached hereto as Exhibit "B" (the "Construction Provisions"). 3) USE. a) Tenant may use the Leased Premises for the display, storage and sale of automotive parts, accessories, supplies and/or maintenance items or for any and all other lawful uses; provided, however, in no event shall the Leased Premises be used for any of the following (collectively, the "Prohibited Uses"): i) trailer court, junk yard, waste material collection facility, or auction house; ii) establishments providing adult-type entertainment or displays of a variety involving or depicting nudity or lewd acts; iii) a massage parlor; a funeral home; v) a facility for the sale of paraphernalia for use with illicit drugs; vi) a facility for the sale or display of pornographic (as determined by community standards for the area in which the Leased Premises is located) material; vii) overnight parking of campers, mobile homes, boats or tractor trailers, except for such trailers as are a part of Tenant's business operations; viii) any exploration, drilling or similar operation of any kind; ix) dance hall, bar, restaurant, off-track betting business, billiard or pool hall, bingo or similar games of chance, game arcade, nightclub or flea market; x) any use which involves the raising, breeding or keeping of any animals or poultry; xi) any dangerous or unsafe uses; xii) any industrial uses, including, without limitation, any manufacturing, smelting, rendering, brewing, refining, chemical manufacturing or processing, or other manufacturing uses; xiii) any mining or mineral exploration or development except by non-surface means; xiv) drug or alcohol rehabilitation or treatment center; xv) abortion clinic; or xvi) any place of religious worship such as a church, temple, synagogue, mosque, or the like. b) Tenant may operate its business at the Leased Premises under any name of its choosing or permitted by law and may set its hours and days of operation, if any, in its sole discretion. Notwithstanding anything contained herein to the contrary, (i) nothing in this Lease shall constitute an agreement of Tenant (express or implied), directly or indirectly, to open or operate a business in the Leased Premises, the rentals received hereunder constituting the entire consideration for Landlord's entering into this Lease, and (ii) Tenant may, at any time during the "Term" (as hereinafter defined), without Landlord's consent, cease business operations at and/or remove any and all of Tenant's "Personal Property" (as hereinafter defined) from the Leased Premises. 4) TERM/EXTENSIONS. a) The initial term of this Lease (the "Initial Term") shall commence on the Commencement Date and shall terminate on the last day of the month in which occurs the fifteenth (15th) annual anniversary of the "Rent Commencement Date" (as hereinafter defined). The Rent Commencement Date shall be the earlier to occur of (i) the date that is forty-five (45) days following the "Completion Date" (as defined in the Construction Provisions) or (ii) the date on which Tenant opens for business to the public at the Leased Premises. Notwithstanding the foregoing, in the event the following conditions have not been satisfied prior to such Rent Commencement Date, then Tenant may, at Tenant's option, pay no Basic Rent or any other charges due under this Lease to Landlord until such time as such conditions have been satisfied or waived (whereupon Tenant shall pay all accrued Basic Rent and/or other charges due hereunder at the time of such satisfaction or waiver): (i) Landlord has delivered to Tenant all applicable subordination, non-disturbance and attornment agreements executed by any and all Mortgagees and/or Ground Lessors with respect to the Leased Premises in the form attached to this Lease as Exhibit "C"; and (ii) Landlord has delivered to Tenant, and Tenant has approved, those certain easement agreements, declarations, covenants, restrictions, rules, regulations and other documents or agreements affecting the Leased Premises set forth in Exhibit "H" as Permitted Encumbrances, and Landlord has placed of record and delivered a certified copy to Tenant of all such agreements and documents. (iii) Landlord has delivered to Tenant a certified copy of the Easement to be recorded described in Exhibit "H" in the form of Exhibit "H-1" attached hereto. Landlord and Tenant shall confirm the Rent Commencement Date by a supplemental commencement date agreement, the form of which agreement is attached hereto as Exhibit "D". The period of time from the Commencement Date until the Rent Commencement Date shall hereinafter be referred to as the "Construction Term." b) In addition to the Initial Term, Tenant shall have the option (each such right referred to herein as a "Renewal Option") to renew and extend this Lease for three (3) consecutive five (5) year periods (each such period referred to as an "Option Period" and collectively as the "Option Periods") immediately following the Initial Term, during which Option Period(s) all the provisions, conditions and covenants of this Lease shall continue in full force and effect except that "Basic Rent" (as hereinafter defined) payable for the Option Period(s) shall be as set forth in Section 5(a) of this Lease. Each Renewal Option shall be deemed exercised automatically unless Tenant shall give Landlord written notice of its election not to exercise any such Renewal Option at least one hundred eighty (180) days prior to the expiration of the Initial Term or any then-current Option Period, as applicable. c) From and after the date on which a Renewal Option is exercised, references to the words "Term" in this Lease shall include the Option Period(s) by which the Term shall have been extended. In the event this Lease is canceled or terminated, the expiration date of this Lease shall be that date on which this Lease is canceled or terminated. The term "Lease Year" shall mean each successive period of twelve (12) consecutive calendar months, commencing on the anniversary of the Rent Commencement Date, except that the first Lease Year shall commence on the Rent Commencement Date. 5) RENT. a) Basic Rent. Commencing on the Rent Commencement Date, during each Lease Year, Tenant shall pay Landlord the following monthly sums ("Basic Rent") which shall be payable, in advance, on the first day of each month: Initial Term: Years 1-10 $9,164.42 per month Years 11-15 $10,080.86 per month First Option Period $10,584.90 per month Second Option Period $11,114.15 per month Third Option Period $11,669.85 per month If the Rent Commencement Date shall be a day other than the first day of a month, the amount of Basic Rent shall be prorated for the balance of such month on a per diem basis, and the prorated Basic Rent for such month shall be due and payable on the Rent Commencement Date. b) Tenant shall have no obligation to pay Basic Rent or any other charges due under this Lease to any party other than Landlord unless and until Tenant has received notice of a change given pursuant to Section 24 below. In the event such notice is given in connection with a transfer or sale of Landlord's interest in the Leased Premises and/or this Lease, such notice shall not be binding upon Tenant until Tenant has received (i) a copy of the instrument assigning or transferring Landlord's interest, (ii) a letter specifying the addresses to which rent and notices are to be forwarded to such assignee or transferee and (ii) a W-9 form executed by the assignee or transferee. The instrument assigning or transferring Landlord's interest shall evidence the fact that such assignee or transferee has assumed all of Landlord's obligations under this Lease and has acquired sufficient title to the Leased Premises to enable such assignee or transferee to perform such obligations; provided, however, this provision shall not be applicable to any transfer given as security for a loan, and no transfer shall release a prior Landlord from any liability hereunder that accrued during the period of such prior Landlord's ownership of the Leased Premises. a) Landlord warrants and represents that, as of the Commencement Date and during the Term: i) Landlord (1) is a limited partnership duly formed, validly existing and in good standing under the law of the State of Texas, (2) is qualified to do business in and is in good standing under the laws of the State of Texas in which the Land is located (the "State"), and (3) has full right and power to execute and perform this Lease and to grant the estate demised herein; Landlord's General Partner, DSL Management, L.L.C., a Texas limited liability company ("General Partner"), who is acting as its signatory for this Lease, is duly authorized and empowered to act for and on behalf of the General Partner, and this Lease, including its execution by Landlord, is enforceable and binding upon Landlord and has been authorized by all requisite action on behalf of the General Partner. General Partner (i) is a limited liability company duly formed, validly existing and in good standing under the law of the State of Texas, (2) is qualified to do business in and is in good standing under the laws of the State of Texas in which the Land is located (the "State"), and (3) has full right and power to execute and perform this Lease and to grant the estate demised herein; General Partner's President, who is acting as General Partner's signatory for this Lease is duly authorized and empowered to act for and on behalf of General Partner. Upon request by Tenant, Landlord shall furnish to Tenant (i) written evidence of Landlord's authority to complete this transaction and empowering those executing documents on Landlord's behalf to do so and (ii) Landlord's certificate of good standing in the State; ii) Landlord is either currently the owner of the Land in fee simple absolute or will become such owner; this Lease is and shall be a first lien on the Leased Premises subject only to any "Mortgage" (as hereinafter defined) or "Ground Lease" (as hereinafter defined) to which this Lease may be subordinated as set forth in Section 20 below; and neither the "Permitted Encumbrances" (as hereinafter defined) nor any other encumbrances grant any other party the rights to use any parking spaces located on the Leased Premises; iii) Neither the execution and delivery by Landlord of this Lease nor the performance by Landlord of the terms hereof will (x) conflict with or violate any other agreement or instrument or any writ, order or decree to which Landlord is a party or by which Landlord is bound or (y) be precluded by or cause a breach of any agreement, mortgage, contract or other instrument or document to which Landlord is a party or which encumbers or otherwise adversely affects the Leased Premises; and iv) This Lease represents the valid, binding obligation of Landlord, enforceable against Landlord in accordance with its terms. b) Landlord warrants and represents that, as of the Commencement Date: i) The Leased Premises is presently, or will be prior to commencement of the Work, properly subdivided in compliance with all applicable laws and regulations and constitutes a tax parcel separate from any other real property; the zoning classification of, and all other governmental regulations pertaining to, the Leased Premises shall permit the construction by Landlord as provided by this Lease and the use of the Leased Premises by Tenant in accordance with the terms of this Lease; and the number of parking spaces totaling thirty-six (36) spaces as shown on the Site Plan shall be provided in the parking area; ii) Landlord's fee simple interest in the Leased Premises is free and clear of any mortgages, deeds, encumbrances, declarations, easements, agreements, leases, tenancies, restrictions, rules or regulations which affect or restrict or could affect or restrict the use or intended use of the Leased Premises by Tenant, its employees, customers, invitees, successors and/or assigns, except those matters set forth on Exhibit "H" attached hereto and entitled "Permitted Encumbrances" (the "Permitted Encumbrances"); and iii) The execution and delivery of this Lease by Landlord has been duly authorized by all required corporate action. c) Tenant represents and warrants to Landlord that: i) Tenant (1) is a corporation duly formed, validly existing and in good standing under the law of the Commonwealth of Virginia and (2) is qualified to do business in and is in good standing under the laws of the State; ii) Neither the execution by Tenant of this Lease nor the performance by Tenant of the terms hereof will conflict with or violate any other agreement or instrument or any writ, order or decree to which Tenant is a party or by which Tenant is bound; and iii) The execution and delivery of this Lease by Tenant has been duly authorized by all required corporate action, and this Lease represents the valid, binding obligation of Tenant, enforceable against Tenant in accordance with its terms. 7) TENANT'S FURNISHINGS, FIXTURES, EQUIPMENT AND OTHER PERSONAL PROPERTY. Tenant, at its sole cost and expense, may supply and install anywhere in or on the Leased Premises any furnishings, fixtures, equipment and/or other personal property, including a satellite dish and any necessary cables or supporting equipment (collectively, "Personal Property"), which it deems necessary for its use of the Leased Premises; provided, however, that Tenant shall repair, at its own expense, any damage to the Leased Premises occasioned by such installation. Landlord and Tenant recognize that Tenant may commence the installation of its Personal Property prior to the Completion Date, as defined in the Construction Provisions. Any such Personal Property supplied and installed in the Leased Premises, except that which is permanently attached, shall be and remain the property of Tenant. Such delivery, installation and placement of Personal Property in the Leased Premises by Tenant shall not constitute final acceptance or actual possession of the Leased Premises by Tenant, and shall not obligate Tenant to pay Basic Rent or other charges prior to the Rent Commencement Date set forth in Section 4(b) of this Lease. It is agreed by Landlord and Tenant that upon and during delivery of such Personal Property by Tenant, Landlord shall provide Tenant with a secure structure and access to the Leased Premises. Any damage to the Leased Premises occasioned by the removal of such Personal Property shall be repaired by Tenant at its sole cost and expense, unless such damage is caused by Landlord's negligence, intentional misconduct, or willful acts, or the negligence, intentional misconduct, or willful acts of Landlord's agents or contractors, in which event such damage shall be repaired by Landlord at its sole cost and expense. Risk of loss as to such Personal Property shall remain with Tenant at all times prior to and during the Terra Tenant shall indemnify, defend, and save Landlord harmless from and against all claims, suits, liabilities and expenses, including reasonable attorneys' fees, for damage or injury to persons or property directly resulting from Tenant's negligent installation of Personal Property in the Leased Premises, except to the extent that such claim, suit, liability or expense is caused, in whole or in part, by Landlord's negligence, intentional misconduct, or willful acts, or the negligence, intentional misconduct, or willful acts of Landlord's employees, agents or contractors. 8) TENANT'S ALTERATIONS AND SIGNS. a) Tenant shall have the right, but not the obligation, at its sole cost and expense and at any time, without Landlord's consent, to make non-structural improvements, alterations and replacements in, on or to the Leased Premises. Tenant agrees that such improvements, alterations, additions and replacements will (i) be made in a good and workmanlike manner by licensed contractors and (ii) comply with all applicable laws, and Tenant shall defend, indemnify and hold Landlord harmless from any and all costs, damages and expenses resulting therefrom, except to the extent that such costs, damages or expenses are caused by Landlord's negligence, intentional misconduct, or acts or omissions, or the negligence, intentional misconduct, or acts or omissions of Landlord's agents or contractors. Tenant shall not make any structural improvements, alterations, additions or replacements without first obtaining Landlord's written consent thereto, which consent shall not be unreasonably withheld, conditioned or delayed. If Landlord's consent is required and if plans and specifications for such work must be prepared in order for Tenant to obtain a building permit for such work, then conceptual plans and specifications for such work shall be provided to Landlord prior to commencement of any such work. Landlord shall be deemed to have consented to such work if written notice of disapproval, with reasons specified, is not received by Tenant within fifteen (15) days following Tenant's delivery of such plans and specifications to Landlord. Without cost or expense to Landlord, Landlord shall cooperate with Tenant in Tenant's efforts to obtain any and all licenses, building permits, certificates of occupancy or other governmental approvals which may be required in connection with any such improvements, alterations, additions and replacements, and Landlord shall execute, acknowledge and deliver any documents reasonably required in furtherance of such purposes. b) Tenant may erect, at its cost and in its sole discretion, an announcement sign on the Leased Premises, the location, size and style of which shall be in Tenant's sole and absolute discretion, announcing Tenant's future business at the Leased Premises. Tenant may, at its cost and in its sole discretion, but subject to compliance with all applicable governmental regulations, install (1) any and all exterior signs on the exterior walls and/or roof of the Leased Premises as it deems necessary and (2) any and all pylon or monument signs on the Leased Premises as it deems necessary. Tenant's ability to erect at the Leased Premises no less than 133.66 square feet of exterior signage in the color(s), size(s) and location(s) shown on Exhibit B, Attachment II (the "Elevations") and Exhibit "I-1" and no less than a 147 square foot pylon sign in the color(s), size(s) and location(s) shown in Exhibit "I-2" attached hereto and on the Site Plan is a condition precedent to its obligations under this Lease and, in that regard, Tenant shall apply for all necessary governmental permits for its desired signage within a reasonable period of time after the Commencement Date of this Lease and shall reasonably diligently pursue such application thereafter. In the event Tenant does not receive all necessary governmental permits for Tenant's desired signage by the date Landlord has received the "Approvals" (as defined in Section 3(a) of the Construction Provisions), Tenant, at its option, may terminate this Lease by giving written notice to Landlord. If local laws do not permit the signage that Tenant desires to erect, then Tenant may, at its expense, seek a sign code variance to allow Tenant's signage. Landlord shall execute any documents, forms or applications necessary for Tenant to obtain all necessary zoning approvals, variances or special exceptions for any and all of Tenant's signage and shall promptly execute all documents required in connection therewith. Notwithstanding anything contained herein to the contrary, Tenant shall be entitled, without Landlord's consent, but subject to compliance with all applicable governmental regulations, to replace any and all of its signs with signage consistent with Tenant's then-current prototypical sign plans. In the event of an assignment or subletting as a result of which Tenant is no longer occupying any portion of the Leased Premises, Tenant's signs may be replaced by signs identifying the appropriate assignee or subtenant, provided that the specific design of such signage shall be subject to Landlord's consent, which consent shall not be unreasonably withheld, conditioned or delayed. c) Any alterations made by Tenant to the Leased Premises shall hereinafter be referred to as the "Tenant's Improvements." Except for Tenant's Personal Property, the Tenant's Improvements that are permanently attached or affixed to the Leased Premises shall become the property of Landlord upon the expiration of this Lease. 9) ASSIGNMENT AND SUBLEASING. Tenant shall have the right to sublet, assign, transfer, reassign and grant concessions or licenses (a "Transfer") in all or any part of the Leased Premises and any of Tenant's rights and obligations under this Lease, without Landlord's consent. In the event of such a Transfer, Tenant shall remain liable for all of Tenant's obligations to Landlord arising hereunder so long as this Lease is not changed, modified or amended in any respect by Landlord and any transferee. Should Tenant wish to be relieved of its obligations hereunder upon a Transfer, Landlord's prior consent to a Transfer shall be required, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the immediately preceding sentence, in the event any assignee hereunder or assignee's guarantor subsequent to an assignment has a net worth calculated in accordance with generally accepted accounting principles equal to or greater than the net worth of Advance Stores Company, Incorporated, as of the end of the fiscal year in which the Commencement Date of this Lease occurs, Landlord's consent to such assignment shall not be necessary, and Tenant shall thereafter automatically (and without any action by Landlord) be relieved of any further obligations under this Lease. Landlord acknowledges and agrees that Landlord's conditioning of the granting of its consent upon obtaining (i) a material amendment or modification to the terms of this Lease or (ii) monetary compensation, shall be deemed unreasonable. In the event Tenant shall be reorganized, merged or consolidated with any other corporation, limited liability company or other business entity, or shall sell all or substantially all of its assets, any resulting or surviving corporation, limited liability company or other business entity, or any other person, which shall, as a result of such reorganization, merger, consolidation or sale, succeed to substantially all of the assets or the business of Tenant, and which shall assume all of the liabilities and obligations of Tenant under this Lease, shall automatically and without the necessity of further assignment or any other act become and be Tenant under this Lease in accordance with and subject to all of the terms, provisions and conditions hereof Tenant shall give Landlord notice of any Transfer, such notice to include a copy of the original instrument evidencing such Transfer; provided, however, that Tenant's failure to provide such notice shall not be an "Event of Default" (as hereinafter defined) by Tenant hereunder or give Landlord the right to exercise any right or remedy against Tenant hereunder. 10) MAINTENANCE AND REPAIRS: a) Subject to Landlord's repair and restoration obligations described in Sections 10(b) and 14 below, Tenant shall, at its cost, during the Term (excluding the Construction Term): i) Maintain, repair and/or replace, in good condition, ordinary wear and tear excepted, each and every portion of the Leased Premises (including, without limitation, all exterior signs related to safety required by law [including handicapped parking signs and fire lane signs] and the exterior of the Building) except for any items the maintenance, repair or replacement of which are Landlord's responsibility hereunder; and ii) Keep the Leased Premises in a reasonably clean and neat condition and not permit the accumulation of any trash, rubbish or garbage (except as accumulated in containers awaiting collection or disposal) in, on or about any part of the Leased Premises and arrange for collection or disposal of accumulated trash, rubbish and garbage from the Leased Premises. b) Notwithstanding the provisions of Section 10(a) above and anything contained herein to the contrary, Landlord shall be responsible, at its sole cost and expense, for the following maintenance, repairs and/or replacements to the Leased Premises during the Term: i) any and all maintenance, repairs and/or replacements to the slab, foundation and structure of the Leased Premises (including, without limitation, repairing any cracks or other damage thereto, but specifically excluding painting of the exterior walls unless painting is required as a result of Landlord's failure to maintain, repair and/or replace the slab, foundation or structure as provided herein); ii) any and all maintenance, repairs and/or replacements to the parking area of the Leased Premises in the event that Landlord fails to deliver the certificate as to the parking area of the Leased Premises as required by Section 2(c) of the Construction Provisions or fails to construct the parking area in accordance with the design standards therefor as required by Section 2(b) of the Construction Provisions; iii) any and all maintenance, repairs and/or replacements to the roof of the Leased Premises, in the event that Landlord fails to deliver the certificates and warranties as to the roof of the Leased Premises required by Section 2(e) of the Construction Provisions; iv) any and all maintenance, repairs and/or replacements to the heating, ventilation and air-conditioning system of the Leased Premises (the "HVAC"), in the event that Landlord fails to deliver the certificates as to the HVAC as required by Section 2(0 of the Construction Provisions; v) any and all maintenance, repairs or replacements which become necessary as a result of Landlord's negligence, intentional misconduct, or acts or omissions, or the negligence, intentional misconduct, or acts or omissions of Landlord's agents or contractors; and vi) any and all maintenance, repairs and/or replacements to the Leased Premises which (i) are required during the first Lease Year of the Term due to the original construction of the Leased Premises or (ii) are made necessary by reason of defects in the workmanship or materials used in the construction of any portion of the Leased Premises (except for any portion of the Leased Premises that was constructed by Tenant) or are due to the settling of the Leased Premises. c) With regard to those items which are Landlord's responsibility under Section 10(b) above, if an emergency situation occurs, Tenant shall make all reasonable efforts to contact Landlord by telephone or facsimile to advise Landlord of the need for such maintenance, repair or replacement. If after making reasonable efforts to contact Landlord, either Tenant is unable to contact Landlord or if Tenant succeeds in contacting Landlord, and Landlord fails to undertake action to correct the emergency situation within twenty-four (24) hours, Tenant may perform such maintenance, repair or replacement as Tenant deems necessary. Within thirty (30) days after written notice from Tenant (accompanied by an invoice or other reasonable evidence of the costs to be reimbursed), Landlord shall pay Tenant an amount equal to the actual, out-of-pocket costs incurred by Tenant in the performance of such maintenance, repair and/or replacement. If Landlord fails to pay to Tenant such costs within such thirty (30) day period, then Tenant may deduct the amount of such costs from Basic Rent and any other charges owed by Tenant to Landlord. For purposes of this Section 10(c), an "emergency situation" means a condition or state of facts which if not corrected would result in further damage to the Leased Premises or its contents or personal injury or damage to any other property or which would in any way prevent Tenant from conducting its business at the Leased Premises in its customary manner. The provisions of this Section 10(c) shall control over any conflicting provisions contained in this Lease. d) Landlord shall protect, defend, indemnify and hold Tenant harmless from all losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees and court costs) incurred for work, labor, repairs, alterations, improvements, services and/or materials supplied to the Leased Premises by or at the direction of Landlord, or which may occur, result from or arise out of the failure of Landlord during the Term to make properly any required repairs or perform any maintenance which is the responsibility of Landlord under this Lease, except to the extent that such losses, damages, liabilities, costs and/or expenses arise out of Tenant's negligence, intentional misconduct, or acts or omissions, or the negligence, intentional misconduct, or acts or omissions of Tenant's agents or contractors. Tenant shall protect, defend, indemnify and hold Landlord harmless from all losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees and court costs) incurred for work, labor, repairs, alterations, improvements, services and/or materials supplied to the Leased Premises by or at the direction of Tenant, or which may occur, result from or arise out of the failure of Tenant during the Term to make properly any required repairs or perform any maintenance which is the responsibility of Tenant under this Lease, except to the extent that such losses, damages, liabilities, costs and/or expenses arise out of Landlord's negligence, intentional misconduct, or acts or omissions, or the negligence, intentional misconduct, or acts or omissions of Landlord's agents or contractors. e) Landlord hereby assigns to Tenant all of Landlord's interest in, and rights under (including rights to enforce), all warranties and guaranties received in connection with the Work or any other work, maintenance, repairs and/or replacements performed by, or at the direction Landlord in, on or at the Leased Premises; provided, however, that Landlord shall retain such interest in and rights under such warranties and guaranties as are necessary or desirable for Landlord to complete any maintenance, repairs and/or replacements to the Leased Premises which (i) are required during the first Lease Year of the Term due to the original construction of the Leased Premises or (ii) are made necessary by reason of defects in the workmanship or materials used in the construction of any portion of the Leased Premises (except for any portion of the Leased Premises that was constructed by Tenant) or are due to the settling of the Leased Premises, as provided in Section 10(b)(vi) above. 11) UTILITIES. Tenant agrees to pay the charges and all required deposits for all utility services furnished to and used by Tenant in the Leased Premises during the Term directly to the utility companies providing such services, excluding any and all connection fees, hook-up charges, impact fees and other similar costs related to the initial start-up expenses for providing such services to the Leased Premises, all of which costs and expenses shall be paid by Landlord. Subject to applicable law, Tenant shall be entitled to select the utility service provider which shall provide water, electric, gas, cable and telecommunication services to the Leased Premises. 12) INSURANCE: INDEMNIFICATION. a) During the Term (excluding the Construction Term), Tenant shall, at its sole cost and expense, obtain and maintain property insurance covering the Leased Premises in an amount not less than the full replacement cost thereof, with such deductibles and retentions as determined by Tenant in its sole and absolute discretion. Such insurance shall be provided by companies authorized to do business in the State. b) During the Term (excluding the Construction Term) Tenant shall maintain with respect to the Leased Premises a policy of commercial general liability insurance, which insurance shall stipulate limits of liability of not less than $2,000,000 each occurrence, single limit bodily injury and/or property damage combined (with such deductibles and retentions as determined by Tenant in its sole and absolute discretion), and shall be provided by companies authorized to do business in the State. c) Tenant shall, within fifteen (15) days after receipt of written request therefor by Landlord, provide Landlord with (i) evidence of such property insurance and (ii) a certificate of such commercial general liability insurance, each naming Landlord and Landlord's Mortgagee as additional insureds or loss payees, as applicable, and providing that the applicable coverage shall not be cancelled without thirty (30) days notice to the holder of such evidence or certificate, as applicable. d) Notwithstanding anything to the contrary contained herein, Tenant shall have the right to self-insure against any of the risks or portions thereof set forth in this Section 12, provided Tenant then has a reported net worth (calculated in accordance with generally accepted accounting principles), as of the end of Tenant's most recent quarterly reporting period, of not less than One Hundred Million Dollars ($100,000,000). e) Landlord shall maintain with respect to the Leased Premises a policy of commercial general liability insurance, which insurance shall stipulate limits of liability of not less than $2,000,000 each occurrence, single limit bodily injury and/or property damage combined, and shall be provided by companies authorized to do business in the State. Such policies of insurance shall name Tenant as an additional insured. Landlord shall, within a reasonable period of time after receipt of written request therefor by Tenant, provide a certificate of such commercial general liability insurance evidencing Tenant as an additional insured on such policy and providing that the applicable coverage shall not be cancelled or modified without thirty (30) days notice to the holder of such certificate. During any period in which Landlord or Tenant is conducting construction activities at, in or on the Leased Premises, such party shall keep, or cause its general contractor to keep, in full force and effect, with regard to the Leased Premises, in form reasonably acceptable to the other party, at least the minimum insurance coverages set forth below: i) Worker's Compensation - Statutory Limits; Employers Liability -$2,000,000; ii) Automobile Liability for all vehicles with limits of $1,000,000; and iii) Commercial General Liability to include premises operations and products/completed operations coverage with limits of $3,000,000. Additionally, such party shall keep or require its general contractor to keep in full force and effect a policy of builder's risk insurance covering loss or damage to the Leased Premises for the full replacement cost of all such construction. To the fullest extent the other party has an insurable interest, such liability policy shall name the other party as an additional insured and such builder's risk policy shall name the other party as a loss payee. g) Any insurance coverage enumerated in this Lease may be effected by a blanket policy or policies of insurance or under so-called "multi-peril" or "package" insurance policies, provided that the total amount of insurance available with respect to the Leased Premises and Tenant's or Landlord's liability hereunder shall be at least the equivalent of separate policies in the amounts herein required, and provided further that in other respects any such policy or policies shall comply with the provisions of this Lease. Landlord shall not be entitled to self-insure any of the insurance coverages recited herein. An "umbrella" policy may be provided and utilized by either party to increase the limit provided by any individual or blanket policies in lower amounts, and the combined occurrence and aggregate limits provided by all such policies with respect to the Leased Premises and Tenant's or Landlord's liability hereunder shall be satisfactory provided that the terms and conditions of such policies otherwise comply with the provisions of this Lease. h) Notwithstanding anything to the contrary contained herein, Landlord and Tenant hereby release each other, to the extent of their agreed-upon insurance coverage, from any and all liability for any loss or damage caused by fire or any other casualty insured against, even if such fire or other casualty shall be brought about by the fault or negligence of the other party, or any persons claiming under such other party. i) Landlord hereby agrees to exonerate, protect, defend, indemnify and hold Tenant and its officers, directors, stockholders, members, beneficiaries, partners, representatives, agents and employees harmless from and against any and all losses, damages, claims, suits or actions, judgments and costs (including reasonable attorneys' fees) arising out of any injury to or death of persons or damage to property on or about the Leased Premises caused by the intentional or negligent acts or omissions of Landlord or its employees, agents or contractors. Tenant agrees to exonerate, protect, defend, indemnify and hold Landlord and its officers, directors, stockholders, members, beneficiaries, partners, representatives, agents and employees harmless from and against any and all losses, damages, claims, suits or actions, judgments and costs (including reasonably attorneys' fees) arising out of any injury to or death of persons or damage to property on or about the Leased Premises caused by the intentional or negligent acts or omissions of Tenant or its employees, agents or contractors. 13) REAL ESTATE TAXES. a) Commencing on the Rent Commencement Date, during the Term, Tenant shall reimburse Landlord for all "Real Estate Taxes" (as hereinafter defined). If the Rent Commencement Date occurs or the Term terminates during any part of a calendar year, Tenant shall be responsible for such Real Estate Taxes for only that portion of the calendar year for which Tenant is responsible to pay Basic Rent hereunder. However, the amount of Real Estate Taxes attributable to the Leased Premises for which Tenant shall reimburse Landlord in part shall be less any abatements, discounts or refunds thereon. In paying such Real Estate Taxes, Landlord agrees to take full advantage of any and all available discounts, and Tenant shall not be obligated to pay any portion of any penalty or interest for delinquent payment, nor shall Tenant be obligated to pay any portion of sums owed by Landlord due to failure of Landlord to take advantage of any discount. Tenant shall reimburse Landlord for such Real Estate Taxes within thirty (30) days of receipt from Landlord of a receipted tax bill (or in the alternative copy of the tax bill and a copy of Landlord's check to the appropriate governmental agency or authority) evidencing Landlord's payment thereof to the taxing authority. b) Tenant shall have the right, at Tenant's sole expense, to contest the amount or validity, or otherwise seek an exemption or abatement, of any Real Estate Taxes or to seek a reduction in the valuation of the Leased Premises assessed for purposes of Real Estate Taxes by appropriate proceedings diligently conducted in good faith, provided that (i) Tenant shall first have notified Landlord in writing of its intent to do so and (ii) such contest will not result in the foreclosure, loss or forfeiture of the Leased Premises, or any portion thereof. In any instance where any such action or proceeding is being undertaken by Tenant, Landlord shall (i) cooperate with Tenant, (ii) execute any and all documents required in connection therewith and (iii) if required by any law, rule or regulation of the taxing authority, shall join with Tenant in the prosecution thereof. Upon the termination of the proceedings set forth above (unless the taxing authority requires that Real Estate Taxes be paid under protest prior to commencement of such proceedings), Tenant shall pay the applicable Real Estate Taxes as finally determined in such proceedings, the payment or partial payment of which may have been deferred during the prosecution of such proceedings. Tenant shall be entitled to a refund of any overpayment of Real Estate Taxes relating or allocable to the Leased Premises, as well as a reimbursement from the appropriate taxing authority of all costs, fees and expenses it incurs in such protest or reassessment. c) For purposes of this Lease, the term "Real Estate Taxes" shall mean all general real estate taxes and assessments and other ad valorem taxes, rates and levies paid upon or with respect to the Leased Premises for a calendar year or a portion thereof to any governmental agency or authority and all charges specifically imposed in lieu of any such taxes, but specifically excluding "roll-back" taxes or other similar land use charges. Nothing contained in this Lease shall require Tenant to pay any local, county, municipal, state or federal income, franchise, corporate, estate, inheritance, succession, capital levy, business or transfer tax of Landlord, or any local, county, municipal, state or federal income, profits, gross receipts, sales or renewal tax or charge upon the rent or other charges payable by Tenant under this Lease. d) Landlord and Tenant understand and acknowledge that certain credits, exemptions, refunds or abatements against tax obligations of Tenant and/or Landlord, whether with respect to Real Estate Taxes, personal property taxes, sales taxes, use taxes, gross receipts taxes, income taxes, payroll taxes, value added taxes or other taxes (collectively, "tax benefits"), as well as incentive payments or credits directly or indirectly from governmental authorities ("incentive payments") may become available as a result of the construction, use, occupancy or conduct of Tenant's business at the Leased Premises, or the decision of Tenant to establish and/or operate a business at the Leased Premises. The full amount of such tax benefits and incentive payments shall be the property of Tenant. In the event that any such tax benefit or incentive payment is paid to, accrues to the benefit of, or is otherwise received by Landlord, at Tenant's option: i) Landlord shall immediately account for and pay over the full amount of such tax benefit or incentive payment to Tenant; or ii) Tenant may offset the full amount of such tax benefit or incentive payment against Basic Rent and any other charges payable by Tenant to Landlord hereunder. Landlord shall cooperate with Tenant and execute any documents, forms, or applications as reasonably requested by Tenant in order to enable Tenant to obtain any tax benefits or incentive payments directly available to Tenant. 14) DAMAGE OR DESTRUCTION. a) If, during the Term, a fire or other casualty shall render the whole or any portion of the Leased Premises untenantable, in Tenant's reasonable judgment, and if, in Tenant's reasonable judgment, the Leased Premises can reasonably be expected to be restored to substantially the same condition existing immediately prior to such casualty within one hundred eighty (180) days from the date of such casualty, Landlord shall repair and restore the Leased Premises to substantially the same condition existing immediately prior to such casualty within such one hundred eighty (180) day period (subject to any delays caused by a "Force Majeure Event" [as hereinafter defined]). In the event that Landlord timely completes such repair and/or restoration, this Lease shall remain in full force and effect. During the period during which such repair and/or restoration is being performed, rent otherwise payable hereunder shall abate in the proportion that the area of the Leased Premises rendered untenantable bears to the entire area of the Leased Premises until the Leased Premises is completely restored, repaired, or replaced to the satisfaction of Tenant; provided, however, that no rent shall be payable for any portion of the Leased Premises unless Tenant is able to conduct its usual business on that portion of the Leased Premises that remains tenantable. In the event that Landlord shall undertake to perform such repair and restoration of the Leased Premises, Tenant shall, prior to Landlord commencing such repair and restoration, provide Landlord with (i) all insurance proceeds and (ii) the amount of the difference between the insurance proceeds and the full replacement cost of the Leased Premises. b) If, during the Term, a fire or other casualty shall render the whole or any portion of the Leased Premises untenantable, in Tenant's reasonable judgment, and if, in Tenant's reasonable judgment, the Leased Premises cannot reasonably be expected to be repaired and restored within one hundred eighty (180) days from the date of such casualty, then Tenant may, by written notice to Landlord sent within sixty (60) days from the date of such casualty, terminate this Lease, which termination shall be effective as of the date of such casualty. c) If any such fire or other casualty which renders the whole or any portion of the Leased Premises untenantable occurs during the final Lease Year of the Initial Term or of any Option Period, Tenant may, within thirty (30) days after the date of such casualty, give written notice to Landlord of Tenant's intention to extend the Term pursuant to the next applicable Renewal Option provided for in Section 3 of this Lease, in which event Landlord shall be obligated to repair and/or restore the Leased Premises as provided in this Section 14. In the event Tenant shall not so elect to extend the Term, both Landlord and Tenant shall each have the option to terminate this Lease by written notice from the terminating party to the other party given within sixty (60) days after the date of such casualty and, in such event, this Lease shall terminate as of the date of such casualty. d) If this Lease is terminated pursuant to this Section 14, Landlord shall promptly pay to Tenant any prepaid but unearned Basic Rent and other charges paid by Tenant, or Tenant shall promptly pay to Landlord any Basic Rent and other charges earned and unpaid, and Landlord shall have the right to (i) the amount of all insurance proceeds and (ii) the amount of the difference between the insurance proceeds and the full replacement cost of the Leased Premises. e) If, during the Term, a fire or other casualty shall damage or destroy any portion of the Leased Premises but shall not render the Leased Premises untenantable, in Tenant's reasonable judgment, Tenant shall repair all such damage or destruction except to the extent fire or other casualty damages or destroys any structural elements of the Leased Premises (as set forth in Section 10(b)). Landlord shall repair any damage or destruction to the structural elements of the Leased Premises (as set forth in Section 10(b)) within sixty (60) days from the date of such casualty; Tenant shall provide Landlord with (i) all insurance proceeds associated with such damage or destruction of the structural elements of the Leased Premises and (ii) the amount of the difference between the insurance proceeds and the cost to repair any such damage or destruction of the structural elements of the Leased Premises. f) If Landlord is required to repair and restore the Leased Premises pursuant to this Section 14, the applicable provisions of Section 2 above and the Construction Provisions shall apply with respect to Landlord's construction work related to such repair or restoration. However, if the nature of the damage is such that it would be impractical to apply some or all of the provisions of Section 2 and the Construction Provisions to Landlord's construction work as mutually and reasonably determined by Landlord and Tenant, then Landlord and Tenant shall agree on an alternative provision or provisions which shall be incorporated into a written agreement executed by both Landlord and Tenant. 15) CONDEMNATION. a) If the whole of the Leased Premises shall be acquired or taken by eminent domain, condemnation or private purchase under threat thereof or in lieu thereof, including, without limitation, the physical occupation of the Leased Premises or any portion thereof or the filing of eminent domain or condemnation papers by appropriate authorities (a "Taking"), then this Lease and the Term shall automatically cease and terminate as of the date on which the condemning authority or private purchaser shall have the right to possession of the Leased Premises or any portion thereof (the "Taking Date"). b) If any part of the Leased Premises shall be so taken and such partial Taking shall render that portion not so taken unsuitable, as determined by Tenant in its reasonable discretion, for the purposes for which the Leased Premises were leased, or if any access, curb cut or other access point on or to the Leased Premises is modified in a manner which adversely and materially affects Tenant's business or is lost as a result of any Taking, then Tenant shall have the right to terminate this Lease by written notice sent to Landlord within twelve (12) months after the Taking Date. If any part of the Leased Premises shall be so taken and this Lease shall not be so terminated, then this Lease shall continue in full force and effect except that the Basic Rent and all other charges payable by Tenant shall be reduced in the same proportion that the gross leasable area of the portion of the Leased Premises that has been taken bears to the total gross leasable area of the entire Leased Premises and Landlord shall, within thirty (30) after the Taking Date, commence to make all necessary repairs and alterations to restore the untaken portion of the Leased Premises to as near its former condition as practicable such that the untaken portion of the Building will be a complete architectural unit. In its performance of such repair and/or restoration work pursuant to this Section 15, the applicable provisions of Section 2 above and the Construction Provisions shall apply with respect to Landlord's construction work related to such repair or restoration. However, if the nature of the damage is such that it would be impractical to apply some or all of the provisions of Section 2 and the Construction Provisions to Landlord's construction work as mutually and reasonably determined by Landlord and Tenant, then Landlord and Tenant shall agree on an alternative provision or provisions which shall be incorporated into a written agreement executed by both Landlord and Tenant. c) If this Lease is terminated as provided in this Section 15, Landlord shall promptly pay to Tenant any prepaid but unearned Basic Rent and other charges, or Tenant shall promptly pay to Landlord any Basic Rent and other charges earned and unpaid. d) In the event of a Taking, whether permanent or temporary, of any pylon or monument sign (as contemplated by Section 8(b) above) on which Tenant has installed identification panels, Tenant shall provide a substitute site (reasonably acceptable to Tenant) therefor, within a reasonable period of time after such Taking. If Landlord shall receive compensation from the condemning authority for such Taking of any such sign, Landlord shall pay said compensation to Tenant within fifteen (15) days after Landlord's receipt thereof. e) In the event of a Taking as described in this Section 15, Tenant shall be entitled to claim compensation from the condemning authority for (i) the value of its leasehold estate in the Leased Premises and (ii) damages occurring by reason of the Taking, including but not limited to loss of good will or future profits or in respect of Tenant's Personal Property, the cost or expense for the repair and removal of such Personal Property, moving or relocation expenses, and any other items to which Tenant may be entitled under applicable law. 16) TENANT'S DEFAULT: a) The following shall constitute an event of default by Tenant hereunder (an "Event of Tenant Default"); i) Tenant's failure to make any payment of money required by this Lease (including, without limitation, Basic Rent or Real Estate Taxes) (subject to Tenant's right of good faith contest), within ten (10) days after Tenant's receipt of written notice from Landlord to Tenant that same is overdue; or ii) Tenant's failure to observe or perform any other material provision of this Lease within thirty (30) days after Tenant's receipt of written notice from Landlord to Tenant specifying such default and demanding that the same be cured; provided that if such default cannot with due diligence be wholly cured within such thirty (30) day period, Tenant shall have such longer period as is reasonably necessary to cure the default, so long as Tenant proceeds promptly to commence the cure of same within such thirty (30) day period and diligently prosecutes the cure to completion. b) Upon the occurrence of an Event of Tenant Default, at Landlord's option, in addition to any and all other remedies which it may have at law and/or in equity (except as provided below), and without its actions being deemed an election of remedies or a cure of Tenant's default, Landlord may (a) terminate this Lease or (b) re-enter the Leased Premises by judicial proceeding, expel Tenant and remove all property from the Leased Premises, and relet the Leased Premises at the best possible rent obtainable and receive the rent therefrom. In the event Landlord relets the Leased Premises, all rentals received by Landlord shall be applied, first, to the payment of any indebtedness other than Basic Rent and other charges due hereunder from Tenant to Landlord; second, to the payment of any costs and expenses of such reletting, excluding tenant upfit costs; third, to the payment of Basic Rent and other charges due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of any future Basic Rent and/or other charges due and unpaid hereunder. Tenant shall remain liable to Landlord for the deficiency, if any, between the Basic Rent and all other charges payable by Tenant pursuant to this Lease and the rent and all other charges payable by the new tenant pursuant to the new lease obtained by Landlord on reletting. In the event this Lease shall be terminated as provided above, Landlord, its agents, servants or representatives may immediately or at any time thereafter peaceably re-enter and resume possession of the Leased Premises and remove all persons and property therefrom, by summary dispossession proceedings. The various rights and remedies reserved to Landlord herein are cumulative, and Landlord may pursue any and all such rights and remedies, whether at the same time or otherwise (to the extent not inconsistent with specific provisions of this Lease); provided that Landlord shall have the duty in any instance to mitigate its damages with respect to any Event of Tenant Default. Notwithstanding anything herein to the contrary, (i) Landlord expressly waives its right to forcibly dispossess Tenant from the Leased Premises, whether peaceably or otherwise, without judicial process, such that Landlord shall not be entitled to any "commercial lockout" or any other provisions of applicable law which permit landlords to dispossess tenants from commercial properties without the benefit of judicial review and (ii) Landlord shall in no event have any right to accelerate the Basic Rent or any other charges payable by Tenant hereunder. 17) LANDLORD'S DEFAULT. a) The following shall constitute an event of default by Landlord hereunder (an "Event of Landlord Default"): (i) Landlord's failure to make any payments of money due Tenant or any third party, including but not limited to the payment of the brokerage commissions pursuant to Section 29(s) below, within ten (10) days after the receipt of written notice from Tenant that same is overdue; or (ii) Landlord's failure to perform any nonmonetary obligation of Landlord hereunder within thirty (30) days after receipt of written notice from Tenant to Landlord specifying such default and demanding that the same be cured; provided that, if such default cannot with due diligence be wholly cured within such thirty (30) day period, Landlord shall have such longer period as may be reasonably necessary to cure the default, so long as Landlord proceeds promptly to commence the cure of same within such thirty (30) day period and diligently prosecutes the cure to completion and provided further that in the case of an emergency, Tenant shall be required to give only such notice as is reasonable under the circumstances. b) Upon the occurrence of an Event of Landlord Default, at Tenant's option, in addition to any and all other remedies which it may have at law and/or in equity, and without its actions being deemed an election of remedies or a cure of Landlord's default, Tenant may do all or any of the following: (i) pay or perform such obligations and offset Tenant's actual cost of performance, including any and all transaction costs and attorneys' fees, against the Basic Rent and any and all other amounts and charges due Landlord hereunder; or (ii) withhold Basic Rent and any other payments due to Landlord under this Lease until such Event of Landlord Default, transaction costs and attorneys' fees specified in subsection (i) above, is cured by Landlord; or (iii) terminate this Lease and/or sue for damages, including transaction costs and attorneys' fees specified in subsection (i) above. With respect to a breach by Landlord of the provisions of Section 18 below, Tenant shall be entitled to any remedies provided therein, in addition to those remedies provided herein. The various rights and remedies reserved to Tenant herein are cumulative, and Tenant may pursue any and all rights and remedies, whether at the same time or otherwise. Notwithstanding the foregoing, a delay by Tenant in exercising its cure rights or other remedies hereunder shall not be deemed a Force Majeure Event for purposes of extending the date(s) established for performance by Landlord. c) Any offset made by Tenant against Basic Rent or any other charges otherwise due by Tenant hereunder shall be without liability to Tenant, shall not constitute a default on behalf of Tenant and shall not affect any other rights or remedies Tenant may have against Landlord for failure to comply with the provisions herein. 18) NON-COMPETITION. a) Neither Landlord nor any stockholder, member, partner, beneficiary, successor, assign, personal representative, heir, subsidiary or affiliate of Landlord, nor any person(s) or entity(ies) having a direct or indirect interest in Landlord, shall, for as long as this Lease remains in force and effect, either directly or indirectly, own, occupy or operate, or sell, lease or otherwise transfer to any person or entity, or permit any person or entity to occupy, any land, building, premises or space, whether presently owned or hereafter acquired, located within two (2) miles of the Leased Premises for the purpose of (i) conducting thereon a business similar to that being conducted by Tenant on the Leased Premises or (ii) the sales, display or rental of automotive parts, accessories, supplies and/or maintenance items. In addition, neither Landlord nor any stockholder, member, partner, beneficiary, successor, assign, personal representative, heir, subsidiary or affiliate of Landlord, nor any person(s) or entity(ies) having a direct or indirect interest in Landlord, shall lease, sell or otherwise transfer or convey any such premises adjacent to and/or contiguous with the Leased Premises without imposing thereon a restriction to secure compliance herewith, or permit any tenant or occupant of any such premises or any part thereof to sublet or assign in any manner, directly or indirectly, any part thereof to any person, firm, corporation or other entity engaged in any such business described above, without the prior written consent of Tenant, which consent may be withheld by Tenant in Tenant's sole discretion. b) Tenant shall, in the event that there is a breach of any of the provisions of this Section 18, have the following rights and remedies, none of which shall be exclusive of the other remedies or any other remedy otherwise available to Tenant: i) Tenant may institute proceedings to enjoin the violation; ii) If such breach continues for a period of thirty (30) days after written notice thereof shall have been given by Tenant to Landlord, Tenant may, at any time thereafter, elect to terminate this Lease and, on such election, this Lease shall, on the date stated in the notice of such election, be terminated, and Tenant shall be released and discharged of and from any and all further liability hereunder; iii) Landlord shall protect, defend, indemnify and hold Tenant harmless from all losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) sustained or incurred in connection with any proceedings instituted by Tenant as a result of any such breach. 19) ENVIRONMENTAL: a) As used herein, the term "Hazardous Substance" includes petroleum, natural or synthetic gas products and any hazardous, toxic or dangerous waste, pollutant, contaminant, substance or material defined as such in, or for the purposes of, the "Enviromnental Laws" (as hereinafter defined). For the purposes of this Lease, the term "Environmental Laws" means any environmental, health or safety law, rule, regulation, ordinance, order or decree, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Resource Conservation and Recovery Act, as amended, any "Superfund" or "Super Lien" law or any other federal, state, county or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any petroleum, natural or synthetic gas products and/or hazardous, toxic or dangerous waste pollutant or contaminant, substance or material as may now or any time hereinafter be in effect. b) Landlord represents, warrants and covenants that: (i) to the best of Landlord's knowledge and belief, the Leased Premises is in compliance with all Environmental Laws and no Hazardous Substances have been released or threatened to be released upon, in, at, around or under the Land or off-site locations within one (1) mile of the Land that are owned, operated or controlled by Landlord or any party related to Landlord to any degree, except as disclosed in the Phase I Report (as defined in Section 19(c)); (ii) to the best of Landlord's knowledge and belief, there is not now, pending or threatened, any action, suit, investigation or proceeding against Landlord or the Land, or against any other property relating to the Land, seeking to enforce a right or remedy under common law or under any of the Environmental Laws; (iii) Landlord has, to the best of Landlord's knowledge and belief, complied with and will continue to comply with all applicable Environmental Laws relating to or affecting the Leased Premises including, without limitation, Landlord's business operations upon or off the Leased Premises (including, without limitation, all Environmental Laws with respect to the registration, testing and upgrading of underground or above ground storage tanks); (iv) Landlord has not, to the best of Landlord's knowledge and belief, and will not engage in any activities that constitute spilling, leaking, emitting, discharging, injecting, dumping or disposing of any Hazardous Substances into the environment on, above, below or surrounding the Leased Premises; (v) to the best of Landlord's knowledge and belief, there is no asbestos-containing material on the Leased Premises; (vi) Landlord has, to the best of Landlord's knowledge and belief, obtained, and will at all times continue to obtain and maintain, all required environmental licenses and permits under the Environmental Laws that are necessary for the ownership of the Leased Premises (the "Environmental Permits"), and Landlord has, to the best of Landlord's knowledge and belief, complied with and will comply with all other governmental or regulatory requirements necessary to comply with the Environmental Laws. Landlord is, to the best of Landlord's knowledge and belief, in full compliance with the terms and provisions of the Environmental Permits and will continue to comply with the terms and provisions of the Environmental Permits; and (vii) to the best of Landlord's knowledge and belief, there are no Hazardous Substances located on, in, at or under the Leased Premises that exceed action levels. Landlord agrees to indemnify and hold Tenant harmless from any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, consultants' fees, and expert fees) arising at any time from or in connection with (i) the presence or release, or suspected presence or release, of Hazardous Substances or asbestos- containing materials at, in or on the Leased Premises unless the Hazardous Substances or asbestos-containing materials are present solely as a result of the breach by Tenant of the provisions of Section 19(d) below or (ii) the violation of any Environmental Laws unless such violation is due solely as a result of the breach by Tenant of the provisions of Section 19(d) below. Without limiting the foregoing, this indemnification (i) shall include any and all costs incurred due to any investigation of the Leased Premises or any cleanup, removal, or restoration mandated by any governmental authorities and (ii) shall specifically include any and all costs due to Hazardous Substances that flow, diffuse, migrate, or percolate into, onto, or under the Leased Premises. c) Tenant's obligations under this Lease are conditioned upon (i) the Land being in compliance with all Environmental Laws and (ii) the Land being free from any and all Hazardous Substances. In order to determine preliminarily such compliance with Environmental Laws and the lack of Hazardous Substances, Landlord shall within thirty (30) days of the date of this Lease obtain and provide Tenant with a copy of a Phase I environmental report (the "Phase I Report") to be prepared at Landlord's sole cost and expense. In the event the Phase I Report reflects (i) any potential non-compliance with Environmental Laws and/or (ii) the potential existence of Hazardous Substances on or under the Land, and the Phase I Report recommends further study, Landlord shall, within thirty (30) days of the date of the Phase I Report, order a Phase H environmental report (the "Phase II Report" and, together with the Phase I Report, the "Environmental Reports") to be prepared at its sole cost and expense. The Environmental Reports shall be prepared by a qualified environmental firm reasonably acceptable to Tenant and shall be addressed and certified to both Landlord and Tenant such that both Landlord and Tenant shall be entitled to rely thereon. In the event the Environmental Reports reflect that (i) the Land is not in compliance with the Environmental Laws and/or (ii) the Land is not free from any and all Hazardous Substances, this Lease shall be null and void on the later of the thirtieth (30th) day after Tenant receives a copy of the most recent of the Environmental Reports or the thirtieth (30th day) after the Commencement Date unless (i) Tenant expressly waives, in writing, such nullification or (ii) Landlord elects, by written notice given to Tenant prior to the expiration of such thirty (30) day period, to have the non-compliance condition and/or the presence of Hazardous Substances remediated. If Landlord elects to undertake any such remediation, Landlord shall diligently perform such remediation and this Lease shall remain in effect for a period of one hundred and twenty (120) days subsequent to the thirty (30) day period described in the previous sentence (the "Remediation Period") to permit such remediation, but if such remediation has not been completed by the end of the Remediation Period, this Lease may be terminated by Tenant upon written notice to Landlord. d) Tenant covenants that, during the period of its possession of the Leased Premises, Tenant and its employees shall comply with all Environmental Laws that are applicable to Tenant's use of the Leased Premises. Tenant agrees to indemnify and hold Landlord harmless from any and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, consultants' fees, and expert fees) arising at any time solely as a result of the violation by Tenant and/or its employees of the foregoing covenant. Without limitation of the foregoing, this indemnification shall include any and all costs incurred by Landlord due to any investigation of the Leased Premises or any cleanup, removal, or restoration mandated by any governmental authorities. 20) SUBORDINATION ESTOPPELS. a) Simultaneously with the execution hereof, Landlord shall deliver to Tenant, with regard to any and all "Ground Leases" (as hereinafter defined) and any and all "Mortgages" (as hereinafter defined) encumbering the Leased Premises as of the Commencement Date of this Lease, a subordination, non- disturbance and attornment agreement in the form attached hereto as Exhibit "C", executed by the lessor under any such Ground Lease ("Ground Lessor") or the holder of such Mortgage ("Mortgagee"), as applicable. Tenant shall have no obligation to pay Basic Rent or other charges hereunder until such subordination, non-disturbance and attomment agreement(s) are delivered to Tenant, whereupon Tenant shall pay all accrued Basic Rent and other charges due hereunder at the time of such delivery. In addition, throughout the Term, Landlord shall deliver to Tenant a subordination, non-disturbance and attomment agreement in the form attached hereto as Exhibit "C" executed by any Ground Lessor or Mortgagee (as applicable) with regard to all future Ground Leases and Mortgages and with regard to all renewals, modifications, replacements and extensions of such Ground Leases or Mortgages. Upon Tenant's receipt of the executed subordination, non-disturbance and attomment agreement, this Lease shall be subordinate to the corresponding Ground Lease or Mortgage. Landlord shall cause any present or future Mortgagee to deliver a subordination, non-disturbance and attomment agreement in accordance with this Section 20(a) at or prior to the time which the lien of the Mortgage is filed against record title to the Leased Premises. As used in this Lease, the term "Mortgage" shall mean any mortgage, deed to secure debt, deed of trust, trust deed or other collateral conveyance of, or lien or encumbrance against, all or any portion of the Leased Premises, and the term "Ground Lease" shall mean any ground lease or master lease affecting all or any portion of the Leased Premises. b) Tenant shall, at all reasonable times, upon at least thirty (30) days' prior written notice from Landlord, provide Landlord with an estoppel certificate in the form attached hereto as Exhibit "E." c) No Personal Property of Tenant shall be subject to mortgage liens of Landlord. 21) TENANT'S PROPERTY AND WAIVER OF LANDLORD'S LIEN. All of Tenant's Personal Property, except that which is permanently attached, and inventory shall be and remain the personal property of Tenant and shall be removable by Tenant any time prior to the expiration or earlier termination of this Lease. Notwithstanding anything contained herein to the contrary, Landlord expressly waives its statutory or common law landlord's liens (as same may be enacted or may exist from time to time) and any and all rights granted under any present or future laws to levy or distrain for rent (whether in arrears or in advance) against the Personal Property and further agrees to execute any reasonable instruments evidencing such waiver, at any time or times hereafter upon Tenant's request. 22) TENANT'S FINANCING. Notwithstanding any other provisions of this Lease, Tenant may, without Landlord's consent, from time to time, secure financing or general credit lines and grant the lenders thereof, as security therefor, (i) a security interest in the Personal Property, (ii) the right to enter the Leased Premises to realize upon any Personal Property so pledged, and/or (iii) a collateral assignment of Tenant's leasehold interest in the Leased Premises, with rights of reassignment; provided, however, such collateral assignment may be made solely for the purpose of securing Tenant's indebtedness. 23) COMPLIANCE WITH APPLICABLE LAWS AND PERMITTED ENCUMBRANCES. During the Term, Landlord and Tenant shall comply with (i) all lawful requirements of the local, county and state health boards, police and fire departments, municipal and state authorities and any other governmental authorities with jurisdiction over the Leased Premises and (ii) any covenants, restrictions and requirements contained in the Permitted Encumbrances, respecting Tenant's use and occupancy of the Leased Premises. 24) NOTICES. Notices under this Lease shall be in writing and shall be deemed properly served and received: (i) two (2) business days after being deposited in the United States mail, as certified or registered mail, return receipt requested, bearing adequate postage, (ii) one (1) business day after being deposited with a reputable overnight delivery carrier (e.g. Federal Express, Airborne, UPS, Express Mail) for guaranteed next day delivery with a request that the addressee sign a receipt evidencing delivery or (iii) upon receipt if personally delivered. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver. Notices shall be addressed as follows: To Landlord at: Meyer-Lamph Development Group, LTD. 5111 North McColl Road McAllen, TX 78504 To Tenant at: Advance Stores Company, Incorporated P.O. Box 2710 Roanoke, Virginia 24001 Attn: Real Estate Department for overnight delivery: 5673 Airport Road Roanoke, VA 24012 Attn: Real Estate Department With a copy to: Advance Stores Company, Incorporated 5673 AirportRoad Roanoke, VA 24012 Attn: Legal Department or to any other address furnished in writing by any of the foregoing. However, any change of address furnished shall comply with the notice requirements of this Section 24 and shall include a complete outline of all current addresses to be used for all parties. 25) NO LIENS. Should any lien of any nature be filed against the Leased Premises, the party on account of whose actions such lien has been filed shall, within thirty (30) days after receipt of written notice of such lien, cause such lien to be removed, or otherwise protected against execution during good faith contest, by substitution of collateral, posting a bond therefor, escrowing of adequate funds to cover the claim and related transaction costs or such other method as may be permissible under applicable title insurance regulations and reasonably acceptable to the other party hereto. 26) COVENANT OF QUIET ENJOYMENT. Landlord covenants, warrants and represents that Tenant, upon paying the rent herein reserved and performing the covenants and agreements hereof, shall peaceably and quietly have, hold and enjoy the Leased Premises during the Term. No third party has the right to prohibit Tenant's tenancy hereunder, to prohibit Tenant or its employees, customers and/or invitees from using the Leased Premises in accordance with the terms of this Lease or to consent to or approve (excepting governmental agencies) any feature of the Leased Premises or Tenant's signage. There shall be no restrictions of any kind during the Term that could prevent, limit or restrict the use of the Leased Premises in accordance with the terms of this Lease, including, without limitation, (x) the operation of a retailer of automotive parts, accessories, supplies and/or maintenance items and (y) truck deliveries to the Leased Premises during Tenant's business hours. No signboards or other construction which obstructs the view of the Leased Premises from adjoining public streets shall be erected during the Term upon any property owned, leased, operated or otherwise controlled by Landlord or any stockholder, member, partner, beneficiary, successor, assign, personal representative, heir, subsidiary or affiliate of Landlord, or any person(s) or entity(ies) having a direct or indirect interest in Landlord. Notwithstanding the foregoing, in the event that an intentional or negligent act or omission or violation of any applicable law, rule or regulation by Tenant, or any assignee (to the extent Tenant remains liable under this Lease subsequent to an assignment pursuant to Section 9) or subtenant of Tenant results in the limitation or restriction of its use of the Leased Premises, neither Tenant nor any such assignee or subtenant shall be able to claim such limitation or restriction to be an Event of Landlord Default hereunder. 27) SURRENDER; HOLDING OVER a) Upon expiration of this Lease, or its earlier termination, Tenant will surrender possession of the Leased Premises (except for any and all of Tenant's Personal Property removed from the Leased Premises) to Landlord in broom clean condition, except for ordinary wear and tear and loss by fire or other casualty or by a "Taking" (as hereinafter defined). b) If Tenant shall remain in possession of the Leased Premises or any part thereof after expiration of the Term without an agreement in writing between Landlord and Tenant with respect thereto, Tenant shall be deemed a tenant from month to month upon the same terms and conditions as contained in this Lease. Notwithstanding the foregoing, Tenant shall pay Landlord, as rental on the Leased Premises for any period that Tenant remains in possession of the Leased Premises after expiration of the Term, an amount equal to one hundred ten percent (110%) of the Basic Rent which Tenant would otherwise have paid if the Term had not expired for each month or any portion thereof in which Tenant occupies the Leased Premises after the expiration of the Term. 28) EASEMENT. Landlord shall be solely responsible for complying with all obligations imposed upon the Leased Premises or the owner or occupant thereof by the Easement, as hereinafter defined, including, but not limited to, all insurance and indemnification. Tenant shall be responsible for maintenance under the Easement provided that Landlord delivers the certificate as to the parking area of the Leased Premises as required by Section 2(c) of the Construction Provisions and constructs the parking area in accordance with the design standards therefor as required by Section 2(b) of the Construction Provisions. Landlord shall promptly provide Tenant with a copy of any notice Landlord receives in connection with the Easement. Landlord shall not consent to any amendment to or modification of the Easement without first notifying Tenant of such proposed amendment in writing and receiving Tenant's written consent to such amendment, such consent not to be unreasonably withheld. Landlord shall indemnify and hold harmless Tenant from all damages, claims, liabilities or expenses, including reasonable and actual attorney's fees (through all levels of proceedings), arising in connection with the Easement or any obligation imposed or right granted therein. 29) MISCELLANEOUS PROVISIONS. a) TIME OF ESSENCE. Time is of the essence with respect to any time periods or dates referenced in this Lease with respect to both Landlord and Tenant. b) CONFIDENTIALITY. Except for documents that are or will be a matter of public record or information which the other party has agreed to in writing may be disclosed, the parties hereto, including, but not limited to, their heirs, successors, assigns and legal representatives, agree to use their best reasonable efforts to maintain the confidentiality of, and shall not disclose to any third party (except to an accountant, attorney, potential purchaser, tax preparer for tax return preparation or lender to the extent such person agrees to be bound by this confidentiality provision), any terms of this Lease or any correspondence, documents and/or things relating to this Lease, unless such terms, correspondence, documents and/or things are legally required to be disclosed. This confidentiality agreement extends to any developers, bankers, lawyers, accountants, employees, agents or any other persons acting on behalf of the parties hereto. Notwithstanding anything contained herein to the contrary, any breach of this confidentiality agreement shall constitute an automatic Event of Default without notice or cure provided, for which either party may recover damages as their sole remedy and for which neither party can terminate this Lease. c) IDENTITY OF INTEREST. Nothing contained in this Lease shall be construed to make Landlord and Tenant partners or joint venturers or to render either party liable for the debts or the obligations of the other. The only relationship created by this Lease between the parties is that of landlord and tenant. d) THIRD PARTY BENEFICIARIES. Except as herein specifically provided, no person, subtenant, customer, employee or invitee or any other third party shall be deemed to be a third party beneficiary of any of the provisions herein. e) PARTIAL INVALIDITY. If any section, paragraph, subparagraph, sentence, clause or phrase of this Lease shall be declared or judged invalid or unconstitutional, such declaration or adjudication shall not affect the other sections, paragraphs, subparagraphs, sentences, clauses or phrases of this Lease, all of which shall remain in full force and effect. f) MEMORANDUM OF LEASE; DECLARATION. Simultaneously with the execution of this Lease, Landlord shall (i) cause to be prepared and executed, at its expense, a short form or memorandum of this Lease in the form attached hereto as Exhibit "F" (the "Lease Memorandum") and (ii) submit same to Tenant. In the event a Lease Memorandum cannot be recorded in the State or locality in which the Leased Premises is located due to legal or financial considerations, as determined by Tenant in its sole discretion, after consultation with Landlord concerning the requirements of said State or locality, Landlord shall (i) cause to be prepared and executed, at its expense, a Declaration of Covenants, Conditions and Restrictions encumbering the Leased Premises and any other real property owned, leased, operated or otherwise controlled by Landlord and/or related entities and located adjacent to or within two (2) miles of the Leased Premises, the form of which Declaration is attached hereto as Exhibit "G" (the "Declaration") and (ii) submit same to Tenant. Landlord shall record, at Tenant's expense, such Lease Memorandum or Declaration, as applicable. The provisions of this Lease shall control with regard to any omissions from, or provisions hereof which may be in conflict with, the Lease Memorandum or the Declaration. Notwithstanding the foregoing, this Lease shall not be recorded in any office or place of public record, and if either party shall record this Lease or cause or permit the same to be recorded, such act may be treated as a breach of this Lease by such recording party. Upon the expiration or earlier termination of this Lease, the parties hereto shall execute a mutually acceptable agreement terminating the Lease Memorandum or the Declaration, as applicable. g) NOTICES AFFECTING THE LEASED PREMISES. Landlord shall promptly forward to Tenant any notice or other communication affecting the Leased Premises received by Landlord from any owner of property adjoining, adjacent or nearby to the Leased Premises or from any municipal or governmental authority, in connection with any hearing or other administrative procedure relating to the use or occupancy of the Leased Premises or any such neighboring property. h) HEADINGS: GENDER. The section headings are for convenience and are not a part of this Lease. The masculine, feminine or neuter gender and the singular or plural number shall be deemed to include the others whenever the context so requires or indicates. i) NO WAIVER. The failure of either party to insist in any one or more instances upon a strict performance of any covenant of this Lease or to exercise any option or right herein contained shall not be construed as a waiver or relinquishment for the future enforcement of such covenant, right or option, but the same shall remain in full force and effect, unless the contrary is expressed in writing by such party. j) FORCE MAJEURE. Except as otherwise specifically contemplated in this Lease, in the event that Landlord or Tenant shall be delayed or hindered in, or prevented from, the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials, delay by the other party, failure of power or unavailability of utilities, riots, insurrection, war, terrorism or other reason of a like nature not the fault of such party or not within its control (each, a "Force Majeure Event"), then performance of such act shall be excused for the period of delay, and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay; provided, however, the party claiming a delay by reason of a Force Majeure Event shall notify the other party within five (5) business days following the onset of the Force Majeure Event. k) PRE-EXISTING CONDITIONS. Nothing contained in this Lease shall be construed to impose any responsibility upon Tenant with regard to any loss, injury or other claim arising as a result of any condition that existed on the Leased Premises at the time of Tenant's taking possession thereof. 1) NO OFFER. Tenant's delivery to a prospective landlord of this form of Lease shall not be deemed an offer to lease even though such form may have been completed in every respect. m) CHOICE OF LAW. This Lease shall be construed in accordance with and governed by the laws of the State. n) BINDING EFFECT. This Lease shall inure to the benefit of and be binding upon Landlord and Tenant and their respective heirs, executors, legal representatives, successors and assigns. o) NO CONSTRUCTION AGAINST DRAFTING PARTY. This Lease has been prepared by Tenant and its professional advisors and reviewed by Landlord and its professional advisors. Tenant, Landlord and their separate advisors believe that this Lease is the product of all of their efforts, that it expresses their agreement, and that it should not be interpreted in favor of either Tenant or Landlord or against either Tenant or Landlord merely because of their efforts in preparing it. I)) ENTIRE AGREEMENT; AMENDMENT. This Lease and the attached exhibits constitute the entire agreement between Landlord and Tenant with respect to the Leased Premises, and all negotiations, considerations, representations and understandings between Landlord and Tenant prior to the execution of this Lease are incorporated herein. Neither this Lease nor any of its provisions nor any of the documents creating the Permitted Encumbrances set forth in "Exhibit H" may be amended, modified, waived, discharged or terminated except by an instrument in writing signed by the parties hereto. q) TRADEMARKS AND TRADE NAMES. All trademarks, trade names, service marks, signs and all other marks of identification used by Tenant in its business shall at all times remain the exclusive property of Tenant, and Landlord shall have no right, interest in, or title to any of Tenant's trademarks, trade names, service marks, signs or other marks -of identification. r) HOLIDAYS. If the day on which any rent or any other payment due hereunder is payable falls on a Saturday or Sunday or on a legal holiday, it shall be payable on the following business day. s) BROKERS. Tenant and Landlord warrant each to the other that it has had no dealings with any broker or agent in connection with this lease, and each party covenants to pay, hold harmless and indemnify the other from and against any and all costs, expenses or liability for any compensation, commissions and charges claimed by any broker or agent with respect to this lease or the negotiation thereof. t) COUNTERPARTS. This Lease may be executed in more than one counterpart, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. u) EXHIBITS. The following Exhibits are attached hereto and incorporated herein by this reference: EXHIBIT "A" - Survey of Land EXHIBIT "B" - Construction Provisions EXHIBIT "C" - Subordination, Non-Disturbance and Attomment Agreement EXHIBIT "D" - Commencement Agreement EXHIBIT "E" - Estoppel Certificate EXHIBIT "F" - Lease Memorandum EXHIBIT "G" - Declaration EXHIBIT "H" - Permitted Encumbrances EXHIBIT "H-1" Easement EXHIBIT "I-1" Exterior Sign EXHIBIT "I-2" Pylon Sign IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed effective as of the day and year first written above. LANDLORD: MEYER-LAMPH DEVELOPMENT GROUP LTD a Texas limited partnership BY: DSL Managment LLC a Texas limited liability company Its General Partner By: /s/ Dale Meyer Name Dale Meyer Its President Date 2/3/05 TENANT: ADVANCE STORES COMPANY INCORPORATED, a Virginia corporation By: /s/ Jimmmie L Wade Name Jimmie L Wade Its President Date 2/7/05 STATE OF TEXAS ) )SS COUNTY OF HIDALGO ) The undersigned, a Notary Public, in and for the County and State aforesaid, does hereby certify, that Dale Meyer, personally known to me to be the President of DSL Management, L.L. C., General Partner of Meyer-Lamph Development Group, LTD., who acknowledged that he did sign the foregoing instrument and that the same is the free act of and on behalf of said limited liability company and said limited partnership and the free act and deed of him personally and as such President, appeared before me this day in person and acknowledged under oath that as such President he signed and delivered the said instrument pursuant to authority duly given to him by said limited liability company and said limited partnership. Given under my hand seal this 3rd day of February, 2005. [Notary seal] /s/ Mary S Scott Notary Public My Commission Expires March 3, 2007 COMMONWEALTH OF VIRGINIA ) )SS COUNTY OF ROANOKE ) The undersigned, a Notary Public, in and for the County and State aforesaid, does hereby certify, that Jimmie L Wade, President of Advance Stores Company, Incorporated, a Virginia corporation, and personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged under oath that as such President, he signed and delivered the said instrument pursuant to authority duly given to him by said corporation. Given under my hand and seal this 7th day of February, 2005. /s/ Darin M Shaz Notary Public My Commission expires: 7-31-08 METES AND BOUNDS BEING A 0.815 ACRE (35,500 SQ. FT.) TRACT, AND BEING ALL OF LOT ONE (1), AND THE EAST FIFTY FEET (50') OF LOT TWO (2), BLOCK ONE (1), RESACA GRANDE SUBDIVISION, SECTION I, A SUBDIVISION IN THE CITY OF BROWNSVILLE, CAMERON COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN CABINET I, SLOT 1338-A AND 1338-B, OF THE MAP RECORDS OF CAMERON COUNTY, TEXAS; SAID 0.815 ACRE TRACT BEING MORE PARTICULARLY LOCATED AND DESCRIBED AS FOLLOWS; BEGINNING AT A CONCRETE MONUMENT FOUND ON THE NORTH RIGHT- OF-WAY LINE OF F.M. 802 (150 F.T. R.O.W.) SAID POINT BEING THE SOUTHEAST CORNER OF LOT ONE (1) OF SAID RESACA GRANDE SUBDIVISION, SECTION I AND THE SOUTHWEST CORNER OF LOT FOUR (4) OF MADDEN RESUBDIVISION (CABINET I, PAGE 1375-A, C.C.M.R.), FOR THE SOUTHEAST CORNER OF THIS TRACT; THENCE, ALONG THE NORTH RIGHT-WAY LINE OF SAID F.M. 802 (150 FT. R.O.W.) WITH ALONG A CURVE TO THE LEFT'WITH A RADIUS OF 1984.86 FT_ AT AN ARC DISTANCE OF 100.64 FT. TO THE SOUTHWEST CORNER OF LOT 1, SAME. BEING THE SOUTHEAST CORNER OF. LOT 2, A TOTAL DISTANCE OF 150.77 FT. (CH: N 5715.00"W 150.73 FT.) TO A ONE-HALF INCH IRON ROD WITH AN ORANGE PLASTIC CAP STAMPED "AMBIOTEC RPLS 5301" SET FOR THE SOUTHWEST CORNER OF THIS TRACT; THENCE, LEAVING THE NORTH RIGHT-OF-WAY OF F.M. 802(150 FL R.O.W.), NORTH 27 DEG. 12 .MIN. 29 SEC. EAST, A DISTANCE OF 173.01 FT. TO A POINT ON THE NORTH LINE OF LOT TWO (2) OF SAID RESACA GRANDE SUBDIVISION, SECTION I, TO A ONE-HALF INCH IRON ROD WITH AN ORANGE PLASTIC CAP STAMPED "AMBIOTEC RPLS 5301" SET FOR THE NORTHWEST CORNER OF THIS TRACT; THENCE, ALONG THE NORTH LINE OF LOTS ONE (1) AND TWO (2), OF SAID RESACA GRANDE SUBDIVISION, SECTION I, SOUTH 59 DEG. 59 MN. 23 SEC_ EAST, AT A DISTANCE OF 50.06 FT. TO THE NORTHEAST CORNER OF LOT 2 SAME BEING THE NORTHWEST CORNER OF LOT 1, AND A TOTAL DISTANCE OF 251.85 FT. TO A METAL PIPE FOUND FOR THE SOUTHEASTCORNER OF LOT TWELVE (12) AND. THE NORTHEAST CORNER OF LOT ONE (1) OF SAID RESACA GRANDE SUBDIVISION, SECTION 1, FOR THE NORTHEAST CORNER OF THIS TRACT; THENCE, ALONG THE EAST UNE OF LOT ONE (1) OF SAID RESACA GRANDE SUBDIVISION, SECTION I, SAME BEING THE WEST LINE OF SAID LOT 4, MADDEN RESUBDIVISION, SOUTH 57 DEG. 17 MIN. 35 SEC. WEST, A DISTANCE OF 202.53 FT. TO THE POINT OF BEGINNING. CONTAINING. 0.815 ACRE (35,500 SQ. FT.) OF LAND, MORE OR LESS. GENERAL NOTES: 1) THIS. TRACT LIES IN FLOOD ZONE "C" (OUTSIDE THE. 100- YEAR FLOOD PLAIN). AS PER THE F.I.A. FLOOD INSURANCE RATE MAP OF COMMUNITY NO. 480101, PANEL NO. 0350-B. EFFECTIVE DATE SEPTEMBER 15, 1983. MONUMENTATION FOUND ALONG THE NORTH RIGHT-OF-WAY UNE OF F.M. 802 (150 FT. R.O.W.) WAS HEW FOR BASIS OF BEARING. 3) THIS TRACT IS SUBJECT TO RESTRICTIONS RECORDED IN VOLUME 3486, PAGE 162, OFFICIAL RECORDS OF CAMERON COUNTY, TEXAS. 4) THIS TRACT IS CLASSIFIED: '4Ca- GENERAL RETAIL "'0" AS PER THE CITY OF BROWNSVILLE PLANNING it ZONING. DEPARTMENT. CONTACT. PERSON: SUSANA GUZUAN, TELEPH. 956-548-6105 IN A -G"' AREA DISTRICT, YARD SHALL BE PROVIDE) AS FOLLOWS: THERE SHALL BE A.1-K NT YARD ALONG THE FRONT UNE OF THE LOT. THE MINIMUM DEPTH OF EACH FRONT YARD SHALL BE 25 FEET. THERE SHALL BE A REAR YARD ALONG THE REAR UNE OF THE LOT. THE MINIMUM DEPTH OF SUCH SHALL BE REAR YARD SHALL BE 13.5 FEET FOR A LOT ON AN ALLEY OR 3.5 FEET FOR A LOT NOT ON AN ALLEY. THERE SHALL. BE A SIDE YARD ALONG EACH SIDELINE OF THE LOT. THE MINIMUM WIDTH OF EACH SIDE YARD SHALL BE 3.5 Ftk. I. SEC. 348-813 HEIGHT. IN A "T AREA DISTRICT, HEIGHT UNITS SHALL BE AS FOLLOWS: THE HEIGHT LIMIT SHALL BE TWO STORIES FOR A DWELLING, APARTMENT HOUSE, OR OTHER RESIDENTIAL BUILDING. THE HEIGHT UNIT SHALL BE 24 FEET FOR ANY OTHER STRUCTURE EXCEPT THAT ANY PORTION OF SUCH STRUCTURE MAY BE ERECTED HIGHER THAN THE UNIT, PROVIDED SUCH PORTION IS SET BACK FROM ALL REQUIRED YARD LINES ONE FOOT FOR EACH FOOT OF ITS HEIGHT ABOVE SUCH LIMIT SEC. 348-814 LOT =TH. IN A "G" AREA DISTRICT, LOT WIDTH SHALL BE AS FOLLOWS: THE MINIMUM AVERAGE WIDTH OF THE LOT SHALL BE 50 FEET. HOWEVER, THE MINIMUM AVERAGE WIDTH OF THE LOT SHALL BE 25 Feet FOR ANY LOT RECORDED IN THE COUNTY MAP RECORDED IN THE COUNTY MAP RECORDS PRIOR TO JULY 14, 1945. SEC. 348-815. LOT AREA. IN A AREA DISTRICT, LOT AREA SHALL BE AS FOLLOWS: THE. MINIMUM LOT AREA SHALL BE 5,000 SQUARE FEET. HOWEVER. THE MINIMUM LOT AREA SHALL BE 5,000 SQUARE FEET FOR A TWO-FAMILY DWELLING IN A DWELLING USE DISTRICT. THE MINIMUM LOT AREA SHALL BE 2.500 SQUARE FEET FOR ANY LOT RECORDED IN THE COUNTY MAP RECORDS PRIOR TO JULY 14, 1945. SEC. 348-816 INTENSITY. IN A AREA DISTRICT. INTENSITY SHALL BE AS FOLLOWS: THE MAXIMUM NUMBER OF DWELLING UNITS PER CROSS ACRE SHALL BE 12.5. THE MAXIMUM FLOOR-AREA RATIO. SHALL BE 0.8